Adams v. Lopez

• Decision Date: 18 October 1965
• Docket Number: No. 7659,7659
• Citation: 1965 NMSC 120,75 N.M. 503,407 P.2d 50
• Parties: Rex ADAMS, as Next Friend of John Rex Adams, a Minor, and Rex Adams, Individually, Plaintiffs-Appellants, v. Mary Helen LOPEZ and Demetrio Montoya, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 50

407 P.2d 50

75 N.M. 503

Rex ADAMS, as Next Friend of John Rex Adams, a Minor, and Rex Adams, Individually, Plaintiffs-Appellants, v. Mary Helen LOPEZ and Demetrio Montoya, Defendants-Appellees.

No. 7659.

Supreme Court of New Mexico.

Oct. 18, 1965.

Wilkinson & Durrett, Alamogordo, for appellants.

W. C. Whatley, R. E. Riordan, Las Cruces, for appellees.

NOBLE, Justice.

This action arose out of an intersection collision between an automobile driven by defendant-appellee, Mary Helen Lopez, and a motor scooter operated by plaintiff-appellant John Rex Adams, sixteen years of age. Adams has appealed from an adverse judgment following a jury verdict.

Second street, upon which Lopez was traveling, is a through street, and Cedro, upon which Adams proceeded, has a yield sign at its intersection with Second street. The accident occurred near the center of the intersection, but the evidence is conflicting as to which vehicle first entered the intersection and as to the proximity of the other vehicle to the intersection.

Because there is testimony that plaintiff was first in the intersection, he complains of the court's refusal to give his requested instruction No. 4, which would have charged the jury that the village ordinance secures the prior use of the intersection to the first vehicle which enters it with time to safely cross ahead of another vehicle. The pertinent portion of section 13 of Ordinance 23 of the Village of Tularosa reads:

'RIGHT OF WAY: When two vehicles approach or enter an intersection at approximately the same time the right of way shall be with the vehicle on the right, unless appropriate signs require otherwise. A vehicle within an intersection shall have the right of way over a vehicle approaching the intersection, except as provided for herein. * * *'

In determining whether an issue has been fairly submitted to the jury, all instructions are to be read and considered together, and when so considered, they are sufficient if they fairly present the fact issues and the law applicable thereto, Viramontes v. Fox, 65 N.M. 275, 335 P.2d 1071. And, it is not error to refuse to give an instruction which has been covered by those given. Chandler v. Battenfield, 55 N.M. 361, 233 P.2d 1047; Lujan v. McCuistion, 55 N.M. 275, 232 P.2d 478. The court gave the whole of the Tularosa Ordinance, supra, and thus covered the matter contained in the request. We think the jury was properly charged on the right of way authorized by the ordinance and that denial of the requested instruction was not error. A different conclusion is not required by Brizal v. Vigil, 65 N.M. 267, 335 P.2d 1065. Compare Beyer v. Montoya, 75 N.M. 228, 402 P.2d 960.

Relying upon Crocker v. Johnston, 43 N.M. 469, 95 P.2d 214, and Schoen v. Schroeder, 53 N.M. 1, 200 P.2d 1021, plaintiff asserts that his requested instruction No. 2, reading:

'You are further instructed that the right of way of one proceeding in the favored direction is not absolute. The person proceeding in the favored direction is, nevertheless, enjoined to exercise all reasonable care and maintain proper look-out to remain alert and keep his car under control. You are instructed that it was the legal duty of the defendant to exercise all reasonable care and maintain a proper look-out for any other vehicle entering the intersection.'

is a correct legal statement and that its refusal by the trial court requires a reversal of the judgment. Even though as an abstract legal proposition the statements contained in the tendered instruction may have announced a correct principle of law, it was not made applicable to the facts in this case and was properly refused. O'Neal v. Geo. E. Breece Lumber Co., 38 N.M. 94, 28 P.2d 523; Martin v. La Motte, 55 N.M. 579, 237 P.2d 923; Gallegos v. McKee, 69 N.M. 443, 367 P.2d 934.

The form and substance of a requested instruction must be such that the court may properly charge the jury in the terms of the request without qualification or modification. Childers v. Southern Pac. Co., 20 N.M. 366, 149 P. 307. The tendered instruction is defective because it does not charge that failure of one proceeding in the favored direction to exercise reasonable care or to maintain a proper look-out renders such person liable for negligence only if such failure proximately results in the accident. Its refusal was not error.

Finally, plaintiff argues that the court erred in instructing the jury that a minor operator of a...